Reversing two lower courts, the New Jersey Supreme Court ruled recently that a customer pursuing litigation against an indoor water park can proceed to trial with his case, despite having signed a waiver of liability prior to the accident. The ruling is a victory not just for plaintiff in Steinberg v. Sahara Sam’s Oasis, but for others injured despite having signed a liability waiver. It signals that a waiver isn’t the absolute line in the sand that defendants uphold it to be.

The state high court, in ruling the plaintiff could go on with his case, ruled that a reasonable juror could conclude the proximate cause of plaintiff’s injuries was gross negligence on the part of the defendant.

Although liability waivers are becoming increasingly common, this case shows they are not impenetrable. One of the circumstances under which a plaintiff can sidestep a liability waiver is by asserting gross negligence, as opposed to simple negligence. Whereas negligence is merely a failure to use reasonable care, gross negligence is the conscious and voluntary disregard for the need to use reasonable care in a circumstance that is likely to cause foreseeable grave injury or harm to persons, property or both.

In the Steinberg case, according to court records, plaintiff was a patron at the indoor water park in April 2010. One of the rides, called the “FlowRider,” simulates riding on a surfboard. One can either lie prone on a body board, or else choose to stand on a board that resembles a small surfboard. If a rider is standing, an attendant holds one end of a rope while patron holds another to help with balance.

Plaintiff and his children were initially ejected from the ride when the attendant noted he didn’t have a wristband indicating he’d signed a waiver for the ride. He returned after signing it. That waiver included a number of warnings, one of which indicated riders might “unavoidably achieve body positions that result in personal injury…” The waiver further indicated the water flow had the potential to pick a rider up head over heel and throw them onto the subsurface covered by foam or matting.

Plaintiff would later explain that, as a first time rider, he was not told that he should lie on his stomach or that if he was standing, he shouldn’t hold the rope with both hands or wrap the ropes around his wrists – something staffers were instructed on during training every season.

Within seconds of getting situated on the ride, plaintiff fell from the board head first, hitting his head on the bottom surface, which resulted in a spinal cord injury that caused him to become an incomplete paraplegic.

He sued the water park for gross negligence resulting in personal injury. Defendants successfully argued before the lower courts that plaintiff had entered into a valid recreational agreement in which he agreed to waive any liability for claims that arose while participating on this particular ride. Plaintiff didn’t try to dispute the fact that the waiver barred his claim for injury based on simple negligence. What he asserted instead was that defendant had committed a higher degree of negligence. Specifically, the company didn’t post updated warning signs from the manufacturer near the ride, and it also didn’t comply with the safety regulations of the manufacturer.

Despite acknowledgement that the agreement could not exonerate defendant of gross negligence, the two lower courts still granted summary judgment to the defense, without analyzing whether there was enough evidence for a reasonable juror to ascertain there had been gross negligence. The federal court ruled there was in fact grounds to reasonably prove this claim.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.